State of New Jersey In the

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FJ-21-287-11.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 7, 2012

Before Judges Carchman and Baxter.

By leave granted, the State appeals an August 23, 2011 Family Part order that granted the motion of T.M., a juvenile, to suppress the single remark he made to a police officer, and later repeated to a flight medic. Concerning T.M.'s answer to the police officer, the trial judge correctly held that T.M. was not in custody when he admitted to being the driver of the motor vehicle involved in a fatal crash. For that reason, the judge properly concluded that the officer did not violate T.M.'s Fifth Amendment rights by not providing Miranda*fn1 warnings to T.M. Nonetheless, relying on State v. Presha, 163 N.J. 304, 316-17 (2000), the judge suppressed T.M.'s statement because the police officer failed to call T.M.'s mother to the scene before asking T.M. the single question that is the subject of this portion of the State's appeal. We conclude the judge was mistaken in her application of Presha to the non-custodial circumstances presented here, and reverse the suppression of T.M.'s single-sentence statement to Sergeant Patrick Kirchner.

We reach a different result concerning the suppression of T.M.'s answer to the question posed to T.M. by Leslie Titus, the flight medic who accompanied T.M. on the helicopter ride to a local hospital. We have no basis to disturb the judge's finding that the powerful pain-killing medication administered to T.M. after he spoke to Sergeant Kirchner, and while he was en route to the hospital, interfered with T.M.'s ability to make a knowing statement. We affirm the suppression of T.M.'s answer to Titus's question.

I.

At 7:04 a.m. on the morning of October 31, 2010, Sergeant Kirchner of the Mansfield Township Police Department was dispatched to a wooded area near the corner of Blau Road and Rockport Road in Mansfield Township. Speaking on the phone with Officer Joseph Hoffman, the mother of one of the two juveniles involved in the fatal crash the previous night, stated that her son T.M. and his friend G.B. were standing on Blau Road near its intersection with Rockport Road.

When Sergeant Kirchner arrived at Blau Road, he observed two males standing under "a bunch of pine trees . . . 40 to 50 yards off the road." Sergeant Kirchner stepped out of his patrol vehicle, and the two juveniles "basically walked over to [him]." Both juveniles were shivering from the cold. Based upon their appearance, Kirchner believed that they had been outside all night. When T.M. and G.B. were a few feet away from him, Sergeant Kirchner asked the single question that is the subject of this portion of the State's appeal. He described the interaction:

I basically just said who was the driver and the young man who -- the white male, again I didn't know their names at the moment, the white male said I was the driver, I was driving. And then I said, well, who's . . . the passenger, and the black male just said I was the passenger, and that -- that was it.

Sergeant Kirchner was the only officer present, although other officers and emergency medical technicians were en route. He described his "first priority" as "medical," as he was "aware of the seriousness of the motor vehicle accident and the mechanism of injury," and it appeared to Kirchner that "[t]he kids ha[d] been out all night long." He described T.M. as "conscious," "coherent," "rational," "aware of his surroundings" and in no severe distress, other than "shivering," when he admitted he was the driver.

After T.M. identified himself as the driver, Sergeant Kirchner placed both juveniles in the patrol car, emphasizing that neither juvenile was placed in handcuffs and neither was under arrest. When asked the purpose of placing them in the patrol car, Sergeant Kirchner answered:

Just to keep them, you know, it was either they're going to stand there or they're going to sit in [the] patrol car and just wait for the [medical] squad. We elected to have them just sit in the patrol car. And again, priority was medical at that point.

On cross-examination, Sergeant Kirchner acknowledged that when he reported for duty on the morning of October 31, 2010, he was aware that there had been a fatal crash in Mansfield Township the previous night because he had been asked to report to the scene, but had been unable to do so. Not until hours after he spoke to T.M. on the morning of October 31, did Kirchner learn that police helicopters had been involved in an unsuccessful manhunt for the juveniles the night before.

Sergeant Kirchner was also asked on cross-examination whether he knew
that T.M.'s mother had called Officer Matthews, as we have already
described, and was on the phone with Officer Matthews at the time
Kirchner reported for duty that day. Kirchner answered in the
affirmative. When asked if he, Kirchner, had asked T.M.'s mother to
"[come] to the location . . . at Blau Road," Kirchner answered in the
negative. He acknowledged that he had not issued Miranda*fn2
warnings to T.M., or advised T.M. of his right to remain
silent before T.M. answered Sergeant Kirchner's inquiry about who had
been the driver.

Shortly after T.M. and G.B. were placed in Sergeant Kirchner's patrol car, an emergency medical technician (EMT) arrived and transported the two juveniles "a mile or two" to the "landing zone," where a helicopter was waiting to take them to a local hospital.

While in transport on the helicopter, Titus injected T.M. with Fentanyl, which Titus described as "a pain control medication that is 80 to 100 times stronger than morphine." Titus acknowledged on cross-examination that he had administered "a pretty heavy dose" of Fentanyl to T.M. both because he suspected that T.M. had a fractured wrist, and because on a scale of one to ten, with ten being the highest, T.M. rated his pain level as "a seven." Titus also acknowledged that Fentanyl can cause a patient to become "fatigued" and "confused," and was frequently used in "surgical procedures to knock people out."

When the helicopter arrived at the hospital, Titus asked T.M. if he had been involved in a motor vehicle accident, to which T.M. answered yes. Titus proceeded to ask him if he was a passenger, at which time T.M. responded "no, . . . I was the driver." Titus testified that information about whether a patient was the driver or a passenger is essential for proper medical treatment as the "mechanism of injury," and where the patient had been sitting in the vehicle, bore a relationship to the injuries that might be expected. Titus testified that T.M. was "conscious," "coherent," oriented in time," "rational" and "stable" during the trip to the hospital.

Days or weeks after the helicopter transport,*fn3 Titus saw the Chief of the Mansfield Township Police Department at a local sporting event. Titus "took [the Chief] to the side" and told the Chief that during the helicopter transport T.M. admitted that he was the driver of the vehicle involved in the fatal crash. A detective from the Mansfield Township Police Department later visited Titus at his home to question him regarding T.M.'s statement.

On November 30, 2010, the State charged T.M. with two counts of death by auto, N.J.S.A. 2C:11-5(a), and one count of knowingly leaving the scene of a motor vehicle accident resulting in death, N.J.S.A. 2C:11-5.1.

Prior to trial, T.M. filed a motion to suppress the responses he gave to Kirchner's and Titus's questions.*fn4

At the conclusion of the evidentiary hearing, the judge held that because T.M. was not in custody when Sergeant Kirchner asked him if he was the driver, no Miranda warnings were required. Nonetheless, the judge suppressed T.M.'s statement to Sergeant Kirchner. The judge reasoned that Presha, supra, 163 N.J. at 316-17, requires the presence of the "parent or guardian whenever possible." Because Sergeant Kirchner was aware, when he left for Blau Road, that Officer Matthews was on the phone with T.M.'s mother, and that T.M.'s mother "clearly was available," law enforcement's failure to request T.M.'s mother to meet Sergeant Kirchner at Blau and Rockport Roads, where her son was located, required the suppression of T.M.'s statement to Sergeant Kirchner.

The judge also suppressed T.M.'s statement made to Titus after the helicopter landed. The judge reasoned:

I have questions with regard to the credibility of [Titus,] in that . . . he voluntarily, unsolicited approached the Mansfield chief of police to discuss this with him, but there's concerns, as well, serious concerns as to whether or not [T.M.] was of sound mind and knowingly and voluntarily made this statement after the Fentanyl was administered, so that statement will be suppressed.

On appeal, the State argues, as to T.M.'s statement to Sergeant Kirchner, that because T.M. was not in custody and was not being interrogated at the time he made the statement, Presha is inapplicable, and the judge committed reversible error when she held to the contrary.

As for the judge's order suppressing T.M.'s statement to Titus, the State maintains that because Titus was not a law enforcement official, and was not acting on behalf of law enforcement when he spoke to T.M., the State was required to prove only that T.M. made a knowing statement. For that reason, according to the State, Titus's testimony that T.M. was not "confused" at the relevant time should have led to the denial of T.M.'s motion to suppress his statement to Titus.

II.

Our review of the judge's conclusions of law is plenary, as we owe no deference to a judge's application of the governing law. State v. Gandhi, 201 N.J. 161, 176 (2010). In contrast, we are required by State v. Locurto, 157 N.J. 463, 471 (1999), to afford deference to a judge's factual findings when the findings could reasonably be reached through reliance on credible evidence in the record. See also State v. Yohnnson, 204 N.J. 43, 56 (2010). Only when the record produces a "feeling of 'wrongness'" -- that is, when the appellate court is "thoroughly satisfied that the [factual] finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction" -- will we disregard a judge's findings of fact. Locurto, supra, 157 N.J. at 471 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).

As T.M. has not cross-appealed from the judge's finding that he was not in custody when he spoke to Sergeant Kirchner, and that Miranda warnings were not required, we will address that issue only briefly, and focus our principal attention on the judge's application of Presha.

In State v. O'Neal, 190 N.J. 601 (2007), the Court described the circumstances under which Miranda warnings are required:

In general, Miranda warnings must be given before a suspect's statement made during custodial interrogation [may] be admitted in evidence. In Miranda, the Court defined "custodial interrogation" as questioning initiated by law enforcement after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. The determination whether a suspect is in custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned. That is, a police officer's unarticulated plan has no bearing on the question whether a suspect was in custody at a particular time; the only relevant inquiry is how a reasonable [person] in the suspect's position would have understood his situation. [Id. at 615-16 (alterations in original) (internal citations and quotation marks omitted).]

The record overwhelmingly supports the judge's conclusion that T.M. was not in custody at the time he answered Sergeant Kirchner's question. T.M. spoke to Sergeant Kirchner in an open field, and voluntarily walked the forty to fifty feet to where the officer was standing, without the officer commanding him to do so. At the time T.M. answered Sergeant Kirchner's inquiry about who was driving, TM was not in the patrol car, was not in handcuffs, was asked only one question and was not under arrest. The questioning was not, in any way, coercive as T.M.'s remark was made in response to the first -- and only -- question posed by Sergeant Kirchner.

The uncontroverted evidence in the record also demonstrates that prior to posing the question, Sergeant Kirchner made no statement to T.M. that could be considered overbearing or coercive, because, as we have noted, the very first words Sergeant Kirchner uttered to T.M. and G.B. were "who was the driver?" Focusing, as we must, on "how a reasonable [person] in the suspect's position would have understood his situation," we conclude the record supports the judge's conclusion that T.M. would not have believed he was in custody, and would not have believed that his "freedom of action" had been denied "in any significant way." Id. at 615-16 (alteration in original) (citations and internal quotation marks omitted). For that reason, Miranda warnings were not required, ibid., and the judge correctly so held.

We turn to the question of whether the failure of police to request that T.M.'s mother meet them at Blau Road required the suppression of T.M.'s statement to Sergeant Kirchner. In Presha, the Supreme Court recognized the "special significance" of the parents' role "in an interrogation setting" to assist the child in the exercise of his or her constitutional right. Presha, supra, 163 N.J. at 314-15. The Court reasoned:

When younger offenders are in custody, the parent serves as a buffer between the juvenile, who is entitled to certain protections, and the police, whose investigative function brings the officers necessarily in conflict with the juvenile's legal interests. Parents are in a position to assist juveniles in understanding their rights, acting intelligently in waiving those rights, and otherwise remaining calm in the face of an interrogation.

[For that reason], . . . a parent or legal guardian should be present in the interrogation room, whenever possible. [Id. at 315 (citations omitted).]

In determining the voluntariness of a juvenile's confession, "the
adult's absence" is a "highly significant factor among all other facts
and circumstances." Ibid. Only when the juvenile is under the age of
fourteen, will the parent's "absence from the interrogation" render
the confession "inadmissible as a matter of law." Ibid.*fn5
Although a court must consider the "totality of the
circumstances" when determining whether the parent's absence renders
the juvenile's statement involuntary, id. at 317, "the critical factor
in this inquiry" is whether the juvenile's will was "overborne by
investigators," id. at 318. The Court also observed that a parent's
"absen[ce]" should be treated differently from circumstances in which
the police affirmatively bar the parent from being present. Id. at 318-19.

For a number of reasons, we reject the judge's conclusion that law enforcement's failure to secure the presence of T.M.'s mother at the roadside requires the suppression of her son's answer to Sergeant Kirchner's question. First, and foremost, the requirements of Presha are "triggered when a juvenile is in police custody facing an interrogation," but do not apply in a non-custodial setting. State ex rel. J.D.H., 171 N.J. 475, 481 (2002). As T.M. was not in custody at the time he answered Sergeant Kirchner's question, the Presha requirement of a parent's presence did not apply. Ibid. That reason, standing alone, requires the reversal of the judge's suppression of T.M.'s answer to the Sergeant's question.

Even if Presha were to apply, the "critical factor in [the] inquiry," is whether T.M.'s "will was . . . overborne by investigators," Presha, supra, 163 N.J. at 318. The State made an ample showing that such was not the case. T.M. was seventeen years old, nearly an adult; the single question was posed in the morning at the side of a road; T.M.'s friend G.B. was present; the tone used by Sergeant Kirchner was conversational, not coercive; and T.M.'s mother was not deliberately excluded from the scene. Of even greater importance, the questioning did not occur in the intimidating setting of a police interrogation room or police headquarters. For all of these reasons, we conclude that the absence of T.M.'s mother when her son answered Sergeant Kirchner's question at Blau Road did not violate T.M.'s rights; and the judge's application of Presha in these circumstances was error. We reverse the suppression of T.M.'s statement to Sergeant Kirchner.*fn6

III.

Next, we address the judge's suppression of the answer T.M. provided to Titus's inquiry concerning whether he was the driver. Because Titus was not a law enforcement officer or functioning as a surrogate of law enforcement, but instead was acting as a private citizen, T.M.'s statement to him would be admissible unless Titus used coercive means that rendered T.M.'s answer involuntary. State v. Kelly, 61 N.J. 283, 289 (1972); State v. Marczak, 344 N.J. Super. 388, 397 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). The trial judge, who was in the best position to evaluate Titus's credibility, State v. Elders, 192 N.J. 224, 244 (2007), concluded that his testimony was unworthy of belief. The judge determined that Titus was, in effect, an officious intermeddler, who inserted himself into the police investigation by approaching the chief of police. Such conduct, in the judge's view, rendered suspicious Titus's insistence that T.M. was coherent and not confused at the time he answered Titus's question.

We must give "deference to those findings of the trial judge which are substantially influenced by his [or her] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Ibid. (citation omitted). We have been presented with no meritorious basis upon which to disturb the trial judge's conclusion that Titus's testimony was unworthy of belief. Accepting, as we must, her reluctance to accept Titus's statement that T.M. was coherent and not confused at the time he admitted being the driver, we are satisfied that there is no meritorious basis to disturb the judge's resulting conclusion that T.M.'s statement to Titus was involuntary within the meaning of Kelly and Marczak. We affirm the suppression of T.M's answer to Titus's question.

Affirmed in part; reversed in part and remanded.

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